The Shift From Repressive to Restitutive Justice

A COMPARATIVE ANALYSIS OF DURKHEIM AND THE MARXISTS RUSCHE AND KIRCHHEIMER REGARDING JUSTICE

Morgan Duchesney: 2003

INTRODUCTION

This paper is a comparative examination of Durkheim’s work on the shift away from repressive towards restitutive justice that he believed accompanied changes in social organizations. First, I will examine Durkheim’s theory of mechanical and organic solidarity to put my ideas in the proper Durkheimian context. I will use the work of the Marxist theorists Rusche and Kirchheimer for comparison with Durkheim because they and other sociologists like Foucault and Elias also identified similar shifts. However, they each posit different reasons for these shifts in punishment. Most of my thinking on these matters will be derived from my reading of chapters two, four and five of Garland’s book, Punishment and Modern Social Theory. Garland provides a clear explanation and analysis of both Durkheim and the Marxists Rusche and Kircheimer. Also, I will attempt to address the fact that Durkheim, unlike others, explored the relationship between the sanctions of criminal law and the remedies of civil law. The society I refer to is generally European and North American.

Beyond this I will address the ways in which Durkheim’s functionalist approach overlaps with and is similar to the structuralist approach of the Marxists Rusche and Kirchheimer. Of special interest to me is the nebulous concept of the ‘collective conscious’ which is central to the work of both Durkheim and also to Marxists in general; although they consider the collective conscious to be class consciousness that arises from the collective awareness of the oppressed working class. Durkheim first defined the term collective conscious as, “…the body of beliefs and sentiments common to the average of members of society.” (1: Durkheim in Marshall, G., 1994, pp. 66.) I will then explore the ways in which they differ and I will attempt to contrast their respective ideas. As a conclusion I will also address how the juxtaposed theorists’ differing views of what is happening are related to why the shift from criminal sanction to restitutive remedy occurred.

DURKHEIM AND THE SHIFT FROM CRIMINAL SANCTIONS TO RESTITUTIVE REMEDIES

In his classic book, The Division of Labour, Durkheim details his theory of mechanical and organic solidarity. For Durkheim, these concepts are linked to societal shifts in legal sanctions, where repressive sanctions are gradually replaced by restitutive remedies. The rise of industrialism caused a shift from mechanical to organic solidarity. Mechanical solidarity existed in societies with simple technologies and strong traditions where deviance was quickly noted through the society’s collective conscious and quickly punished. “ Durkheim called this intense moral consensus mechanical solidarity, meaning social bonds, common to pre-industrial societies based on shared moral sentiments.” (2: Macionis, Nancarrow-Clarke, Gerber, 1994, pp.122.) A good example of this is the ancient Hebrew practice of stoning adulterers to death. This example leads me to ponder a hypothetical Durkheimian analysis of the modern application of harsh Sharia Islamic law in modern societies like Saudi Arabia. Would Durkheim be surprised to see that such brutal sanctions haven’t shifted to more restituitve ones in post-modern times?

Organic solidarity for Durkheim occurred gradually as society began to lose the automatic sense of belonging that characterized mechanical solidarity. This was replaced by organic solidarity that was the result of industrialization’s gradual creation of, “…social bonds…based on specialization…among people who, although conforming less in moral terms, find that specialization makes them need one another.” (3: Ibid.) As a result of this broad anthropological/historical approach to sociology, Durkheim arrived at his concept of the division of labour. Eventually, he came to believe that shifts in legal sanctions were a function of shifts and changes in society’s collective conscious.
Durkheim was essentially a functionalist who linked the division of labour to legal sanctions. “ Penal sanctioning represented for him a tangible example of the ‘collective conscious’ at work, in a process that both expressed and regenerated society.” (4: Garland, 1991 pp. 23.)
Sanctions served to reflect society’s collective conscious and as time passed and social conditions and customs changed, so too would criminal sanctions give way in many categories to restitutive civil remedies.

THE MARXISTS RUSCHE AND KIRCHHEIMER

Garland considers Rushe and Kirchheimer’s interpretation of punishment the, “…The best-known and most influential example of a Marxist interpretation of punishment.” (5: Garland, 1991, pp. 89) However, they have been criticized as reductionists or theorists who reduce complex theories to a simplistic primary operative idea or principle. Garland considers their 1939 book, Punishment and Social Structure the, “…the most sustained and comprehensive account of punishment to have emerged from the Marxist tradition.” (6: Ibid.)

These Marxist structuralists set out a series of questions or propositions that according to Garland determine, “…to what extent are is the development of penal methods determined by social relations.” ( Ibid.) Of course, underpinning these propositions is the structural foundation of Marxism that tells us that social structures are the most significant mechanisms producing catalysts for societal change. These propositions tell us first that, to paraphrase Garland; punishment as such is an abstraction until it assumes concrete form in historical context. Further, productive relationships produce specific forms of punishment. Also, Forms of punishment are more than responses to particular crimes, they are subject to broad social conditions. As well, prisons and jails ought to be viewed as in terms of their, “…relationships with other institutions and with non-penal aspects of social policy.” (7: Garland, 1991, pp. 90.) Naturally, as Marxists, they posit that all punishment is an integral part of class struggle, whether it is classically Marxist between bourgeoisie and proletariat or the modern struggle between global capital and the working poor. Finally, to expand on the last point, Rusche and Kircheimer believed that punishment doesn’t benefit society generally, but instead assists one class in their efforts to dominate another. Here I assume that the upper class is arranging punishments to control the lower classes to the material advantage of the wealthy.

OVERLAPS AND SIMILARITIES BETWEEN DURKHEIM AND THE MARXISTS RUSCHE AND KIRCHEIMER

Rusche and Kircheimer obviously share with Durkeim an interest in punishment and its origins and roles in society. These two Marxists were fortunate in that prior to their work, there was no Marxist precedent in terms of studying punishment. They were on new ground and so were free of the limitations of what Garland calls, “…original orthodoxy.” (8: Garland, 1991, pp. 84.) Durkheim, unlike other prominent sociologists like Max Weber and Karl Marx, was intensely interested in punishment because, “ Penal sanctioning represented for him a tangible example of the ‘collective conscious at work.” (9: Garland, 1991, pp. 23.)

Marx’s ‘class consciousness’ is difficult to compare to Durkheim’s ‘collective conscious’ but both abstractions provide an explanatory context for broad shifts in social phenomena.
Both Durkheim and these two Marxists offer a historical or evolutionary account of punishment. Durkheim’s theory of punishment has been criticized as being out of touch with modern reality and more relevant to primitive societies. However, Garland states that Durkheim’s ideas are still relevant because while the administrators of punishment are unaware of it, “…the elementary characteristics he identified in primitive societies still underpin our practice and give meaning to it.” (10: Ibid.) Rusche and Kircheimer are also historians of punishment whose main work was basically a Marxist history of punishment. However, according to Garland, they were very discreet about making any excessively bold Marxist pronouncements.

CONTRASTS AND DIFFERNCES BETWEEN DURKEIM AND THE MARXISTS RUSCHE AND KIRCHEIMER

Durkheim was a functionalist and the Marxists were structuralists. Durkheim was mainly concerned with the functioning of society through the mechanisms of social organizations like the primitive tribe and the modern political party or government. As well, he believed that morality and sanctions were grounded in the functioning of societal organizations. To Durkheim punishments were an expression of common outrage against cherished institutions or individuals. The Marxists concluded that punishment derived from society’s layers or structures. By this I mean the working class and the merchant class and their competing interests. They cite the rise of convict labour during the industrial revolution as a method used by the bourgeoisie to simultaneously punish and profit from the proletariat.

Durkheim generally ignored economic determinants while these factors were central to the thinking of the Marxists. He interpreted economic factors as a component part of society rather than the central operative idea. Thus the economy was a product of society’s natural anthropological/historical progression and its tensions were a reflection of the ‘collective conscious’ dynamic. For Rusche and Kircheimer, the economy is the focal point of society. While they seem different on the surface, the two approaches’ main difference is one of perspective. They see society as a collection of segments held together by symbiotic relationships. “Like Durkheimian sociology, Marxist theory offers a holistic approach to the explanation of social life.” (11: Garland, 1991, pp. 85.)

Rusche and Kirchemeir did not refer to civil sanctions as such but they did account for a gradually decreasing severity in punishment. They explain the trend away from severe criminal sanctions as a way of protecting a valuable commodity ( labour) in a supply and demand scenario where, “…when labour is in abundant supply…as in the late Middle ages…penal policy can afford to be reckless with human lives…However, when demand for labour threatens to exceed supply…in the mercantilist period…the state…[is] more likely to put offenders to work in some way.” (12: Garland.1991, pp.93.) While this doesn’t explain the rise of convict labour in the U.S. it does make sense of the increasing privatization of corrections in the U.S. where the penal system operates with an ever-increasing focus on cost-benefit analysis in the delivery of ‘corrections services’.

THE SHIFT FROM CRIMINAL TO CIVIL SANCTIONS

Durkheim’s theory of the shift from criminal sanctions to restitutive civil remedies is incomplete for a number of reasons but particularly because, according to Rusche and Kircheimer, there is insufficient evidence to support his extremely abstract position. As well, the fact that Durkheim claims that punishment today is essentially the same in spirit as it was 4,000 years ago weakens his argument. The only way I can understand this claim is to refer to his notion that social conditions [shifts] impose upon the individual the necessity of self-governance which in turn produces a certain type of psyche, one not comfortable with violence as a response to moral outrage.

According to Durkheim, the law and its sanctions are always a reflection of social conditions. As Lukes and Scull write of Durkeim’s later thinking, “…he came to think that the modern morality of individualism and distributive [restitutive?] justice involves not the abandonment but the transformation of collective beliefs and sentiments, whose need for penal expression and reinforcement survives.” (13: 1983, pp. 19.) He believed that the shift from criminal to civil sanctions was the result of the increased individualization of relations in the psycho-social and functional requirements of social organizations. As well, he was concerned with social cohesion that changed dramatically as society shifted from mechanical to organic solidarity. In this respect Durkeim was original in his thinking. What had previously appeared just under mechanical solidarity was bound to change as specialization increased but did not eliminate peoples’ interdependence. Instead, society underwent a shift as people could no longer be generalists and supply most of their own required goods and services. The reciprocal relations of interdependence in the exchange of goods and services produced expectations.